UNITED STATES v. MOUSSAOUI: 4th Circuit Opinion

Fourth Circuit Court of Appeals ^ | April 22 | 4th Circuit

[kazander]

The Fourth Circuit's decision on the Moussaoui decision has been released. The introductory paragraph reads:

"For the reasons set forth below, we reject the Government’s claim that the district court exceeded its authority in granting Moussaoui access to the witnesses. We affirm the conclusion of the district court that the enemy combatant witnesses could provide material, favorable testimony on Moussaoui’s behalf, and we agree with the district court that the Government’s proposed substitutions for the witnesses’ deposition testimony are inadequate. However, we reverse the district court insofar as it held that it is not possible to craft adequate substitutions, and we remand with instructions for the district court and the parties to craft substitutions under certain guidelines. Finally, we vacate the order imposing sanctions on the Government.

[kazander]

I have no idea what the opinion truly says yet. But it is big news. Looks like its a very complicated decision.

[Prince Charles]

Isn't the appeal of this ruling what The Supremes are now considering?

[kazander]

No. This is the appeal of Judge Brinkema's decision to allow Moussaoui access to KSM and Ramzi Binalshibh.

[NeonKnight]

That is John F'ing Kerry speak. It says that we agree with the district court, but we are ruling against them. Good for the good guys.

[Prince Charles]

Okay, thanks. More guesswork in black robes, it appears.

[Prince Charles]

P.S.: The case should be transferred to a military tribunal -- after November.

[Dog]

I'll take a stab at it.

We affirm the conclusion of the district court that the enemy combatant witnesses could provide material, favorable testimony on Moussaoui’s behalf, and we agree with the district court that the Government’s proposed substitutions for the witnesses’ deposition testimony are inadequate.

They ruled that the witnesses have info Moussaoui should see..

However, we reverse the district court insofar as it held that it is not possible to craft adequate substitutions, and we remand with instructions for the district court and the parties to craft substitutions under certain guidelines.

They told the district court there are options.....figure it out.

Finally, we vacate the order imposing sanctions on the Government.

They vacated the penalties placed on the government.

[kazander]

Looks like the Fourth Circuit, in a 2-1 decision, said that the Moussaoui defense is entitled to use summaries of statements made by KSM and RB, but neither Moussaoui nor any of his counsel would be able to interview KSM or RB directly. Also, the Court reinstated the Gov't ability to seek the death penalty (by vacating the district court's sanction order).

[kazander]

Dog said: "They told the district court there are options.....figure it out."

Actually, they are telling the district court that the defense can use summaries of the statements, and the district court shouldn't have summarily rejected the Gov't's attempt to use these summaries. The fourth circuit also gave the district court a bit of a roadmap to use to figure out the proper way to present the summaries to the jury.

[P-Marlowe]

"The Government proposed substitutions for the witnesses’ deposition testimony in the form of a series of statements derived from the * * * * summaries. The district court rejected all proposed substitutions as inadequate. The ruling of the district court was based on its conclusions regarding the inherent inadequacy of the substitutions and its findings regarding the specific failings of the Government’s proposals. For the reasons set forth below, we reject the ruling of the district court that any substitution for the witnesses’ testimony would be inadequate. We agree, however, with the assessment that the particular proposals submitted by the Government are inadequate in their current form."

.

Sounds like a wash. 62 pages to tell the parties to go back to square one.

[Guillermo]

No, you're thinking about Clarett.

[the Real fifi]

The case will be moved to a military tribunal. The US will not allow him access to these guys.

[mrsmith]

Wilkins is fun:
"...Indeed, the Supreme Court has observed that "even quite burdensome interactions" between the judiciary and the Executive do not "necessarily rise to the level of constitutionally forbidden impairment of the Executive’s ability to perform its constitutionally mandated functions." Clinton v. Jones, 520 U.S. 681, 702 (1997)...
...The district court orders requiring production of the enemy combatant witnesses involved the resolution of questions properly—indeed, excusively—reserved to the judiciary. Therefore, if there is a separation of powers problem at all, it arises only from the burden the actions of the district court place on the Executive’s performance of its duties. See Clinton, 520 U.S. at 701-06 (addressing claim that separation of powers principles barred "an otherwise traditional exercise of judicial power" that would "impose an unacceptable burden on the President’s time and energy, and thereby impair the effective performance of his office").

Williams is right that the court cannot require the CINC to produce the witnesses:
"... the Supreme Court has held that "[e]xecutive power over enemy aliens, undelayed and unhampered by litigation, has been deemed, throughout our history, essential to war-time security." Eisentrager, 339 U.S. at 774."

But Gregory, surprisingly, gets the apt point:
"...The ultimate question that must be resolved to determine whether Moussaoui is eligible for the death penalty is this: Did he participate in the September 11 attack, or know of the attack in advance? If Moussaoui cannot ask this question of the witnesses who have direct knowledge, he is undeniably and irretrievably handicapped in his ability to defend himself from a sentence of death."

Moussaoui should be in a tribunal. He would get the fairest legal treatment that way. (And then rightfully be killed IMHO). This is too difficult for the Judiciary.

[antiRepublicrat]

I've been reading it and:

Defendant's 6th Amendment rights upheld: the government tried to get out of producing witnesses because they are foreigners overseas. The argument lost because they are in U.S. custody and a writ of habeas corpus for testimony can be served on the custodian of such people.

Then it discusses whether witnesses can testify on the basis of the AG not granting them immunity. Basically, this plays the defendant's 6th against the witness' 5th. This argument was tossed because a court can't automatically assume a witness would invoke the 5th.

It then agrees that producing the witness places a substantial burden on the executive, something that brings separation of powers into the mix.

Then the executive lost trying to say the witnesses aren't material (duh).

Then it shows that the lower court properly ordered the government to produce the witness, while admitting that the government has the right to refuse, but under penalty of sanction (which would be dismissal of the case). However, since this is a special case and the government has an extreme national security interest, the court doesn't think sanction is in order.

The court is then trying to find a substitution for testimony that would balance the government's interests and the defendant's rights. It agrees the government's previously proposed substitutions were inadequate (I think they're redacted interrogation transcripts), but the lower court was wrong in thinking there is no possibility of an adequate substitution.

But it did agree that the government played with what was included in the substitutions: excluding exculpatory testimony and including damaging testimony. In other words, they basically tried to tamper with evidence.

So the court proposes that the lower court work with the parties to craft new substitutions that are fair to the defendant but do not damage the government's interest in national security.

[kazander]

The Fourth Circuit is not ordering that he be given access to RB and KSM. The decision agrees that its in the Government's national security authority to decline to produce these witnesses for direct questioning. However, the Government has to provide "substitutions", which are summaries of statements made by KSM and RB to the defendant. The Gov't was already willing to do this, but the district court said the summaries weren't "reliable" (legal term of art) as evidence that would be submitted to the jury. The 4th Circuit said "wrong". The district court should not have rejected the compromise of presenting written summaries of the statements to the jury. The 4th Circuit said that summaries are appropriate, and gave the district court instructions on how to craft the summaries and how to instruct the jury concerning them as well.

It is a bit confusing, I know. But the key here is that the government doesn't have to produce the actual bad guys, it can use evidence refering to Sept. 11 (which the district court ordered them not to do as a sanction), and the government can seek the death penalty (again, the district court sanction said no death penalty because you refused to produce RB & KSM).

[Oldeconomybuyer]

As I read the legal goggley-gook, Moussaoui gets limited and restricted access to his fellow terrorists and the government gets to eventually nail his sorry islamist arse.

Seems reasonably fair to me.

[hellinahandcart]

Okay, I'm getting a flashback to the night the Bush v. Gore decision came down...and I am remembering that "reverse and remand" is more severe than "vacate". So the important part is that part that was reversed.

[Thud]

ping

[OldFriend]

Sounds reasonable.

[Thud]

http://www.ca4.uscourts.gov/moussaoui4792/pdf/034792opn.pdf